Purandora Khinang vs State of Orissa

L. Mohapatra, J.—This appeal has been filed assailing the judgment and order dated 3.8.2001 passed by the learned Additional Sessions Judge, Jeypore in Sessions Case No. 34 of 1999 convicting the Appellant for commission of offence u/s 302 of the Indian Penal Code (in short ''I.P.C.'') and sentencing him to undergo imprisonment for life and fine of Rs. 2,000/, in default, to undergo further R.I. for one year.

The case of the prosecution as revealed from the record is that on 14.11.1998 at about 9 P.M. the Appellant was knocking his door when P. Ws.1 and 2 got up from sleep, came out of the house and found the Appellant standing with a blood stained Tangia. On being questioned, the Appellant confessed to have killed his brother Kaladhar Khilar. Thereafter, the Appellant was caught hold of and the tangia was snatched away from his hands. The matter was reported to the police by P.W.1 which was treated as F.I.R. and investigation was taken up. On completion of investigation, charge sheet was submitted for commission of offence u/s 302 of the I.P.C.

Prosecution in order to prove the charge, examined 10 witnesses but none was examined on behalf of the Appellant. Out of 10 witnesses examined on behalf of the prosecution, P.W 1 is the informant. Extra judicial confession was made by the Appellant before P. Ws.1 and 2. P.W. 3 is the wife of the Appellant.P. Ws.4, 5, 6, 7 and 8 turned hostile. P.W.9 is the doctor, who conducted the postmortem examination and P.W. 10 is the I.O. The trial court on the basis of the extra judicial confession made by the Appellant before P. Ws.1 and 2 coupled with the postmortem and chemical examination reports, found the Appellant guilty of the charge and convicted him thereunder.

The learned Counsel for the Appellant assailed the impugned judgment on the ground that extra judicial confession by itself is a week piece of evidence and therefore, solely on the basis of the extra judicial confession, the trial court could not have convicted the Appellant for commission of the alleged offence. It was also contended by the learned Counsel that P. Ws.1 and 2 before whom the prosecution alleges that the Appellant made the extra judicial confession were not in friendly term with the Appellant and the basis of evidence shows that they had enmity and therefore, under these circumstances, no reliance could be placed on the evidence of P. Ws.1 and 2 so far as extra judicial confession is concerned. According to the learned Counsel, once extra judicial confession is left out of consideration, there is no other material to connect the Appellant with the alleged crime and therefore, the impugned judgment convicting the Appellant is unsustainable.

Learned Counsel for the State submitted that though P. Ws.1 and 2 have stated that they were not in friendly term with the Appellant, considering the manner and circumstances under which the extra judicial confession was made, the evidence of P. Ws. 1 and 2 in that regard cannot be brushed aside. According to the learned Counsel for the State, the extra judicial confession made before P. Ws.1 and 2 coupled with the conduct of the Appellant immediately after the occurrence, the injuries found on the body of the deceased and the chemical examination report, clearly point at the guilt of the Appellant and therefore, there is no reason for this Court to interfere with the impugned judgment.

We have carefully scrutinized the evidence of these two witnesses examined on behalf of the prosecution in course of trial. P.W.1 is the informant and is a neighbour of the Appellant. He in his deposition has stated that in the night of occurrence at about 9 P.M. when he was in his house, he heard sound from outside. Being curious about the sound, he came out and found the Appellant standing in front of his house which situates near the house of this witness. P.W.2 was also present there. This witness asked the Appellant as to what he was doing so late in the night and the Appellant replied that he had committed murder of his own brother and showed the dead body of his deceased brother lying by the side of his own house. At that time the Appellant was holding a blood stained Tangia and his wearing apparels were also stained with blood. Fearing that the Appellant may flee away, they caught hold of him, called the village Naik and other members of the village and took the Appellant to the Police Station along with the weapon of offence. Thereafter he orally reported about the matter. In cross examination this witness has stated that he and P.W.2 were present when the Appellant made a confession before them and that he was not in friendly terms with the Appellant. P.W.2 whose presence at the time when the Appellant made the extra judicial confession is stated by P.W.1 has also supported by P.W.1 in every respect and he has also stated in cross examination that he was not in friendly relationship with the Appellant. P.W.3 is the wife of the Appellant and she was declared hostile. Similarly P. Ws.4, 5, 6, 7 and 8 were declared hostile. P.W.9 is the Doctor, who conducted postmortem examination and found two incised wounds on the body of the deceased. One of the incised wounds was over the right side neck and the other was also over the right side neck just below the first injury. P.W.9 was of the opinion that all the injuries were ante mortem and homicidal in nature. They were also sufficient in the ordinary course of nature to cause death. He also opined that the injuries could be caused by Tangia which is stated to be the weapon of offence. P.W.10 is the I.O.

On analysis of the evidence of these witnesses, it appears that at about 9 P.M. in the night of occurrence, P. Ws.1 and 2 heard a sound from outside and came out of the house. They saw the Appellant standing in front of his house with a blood stained Tangia and P.W.1 asked him as to what he was doing so late in the night. The Appellant confessed before them to have committed murder of his brother and showed them the dead body. From the evidence of P. Ws.1 and 2, it is clear that not only the Appellant made an extra judicial confession before them admitting to have committed murder of his brother, but also he was found standing in front of his house with a blood stained Tangia and also showed the dead body of the deceased to both P. Ws. 1 and 2. The question raised before this Court is as to whether the extra judicial confession made before P. Ws.1 and 2 can be accepted or not. Learned Counsel appearing for the Appellant with reference to the evidence of P. Ws.1 and 2 submitted that both these witnesses admitted in cross examination that they were not in friendly term with the Appellant. P.W.4 who turned hostile also stated in cross examination that P. Ws.1 and 2 did not pull on well with the Appellant. In view of such statement made by P. Ws.1, 2 and 4, it is. stated by the learned Counsel that it is improbable that the Appellant would make an extra judicial confession before two persons with whom he does not have a friendly relationship. Learned Counsel for the Appellant in this regard referred to a number of decisions of this Court and the apex Court. The said decisions are Bhanu Dei and Joginath Pradhan Vs. The State, , Dinabandhu Munda Vs. State of Orissa, , Kotari Suri Vs. The State of Orissa, , State of Punjab v. Gurdeep Singh, reported in (1999) 17 OCR (SC) 502, Sitaram Vishnu Chalke Vs. State of Maharashtra, , The State of Punjab Vs. Bhajan Singh and Others, and Binder Munda Vs. State of Orissa, .

On perusal of all the aforesaid decisions, we find that the Courts have observed that extra judicial confession by itself is a weak piece of evidence, but at the same time, an order of conviction can lie, if such extra judicial confession is found to be voluntary and true. In order to find out as to whether such extra judicial confession is voluntary and true or not, it is necessary to examine the evidence of such witnesses speaking about extra judicial confession carefully to find out the exact words used by the Appellant while making a confession and the reason for making such extra judicial confession.

In a recent decision, the Supreme Court in the case of Kusuma Ankama Rao Vs. State of Andhra Pradesh, , while analyzing Section 24 of the Evidence Act, observed as follows:

An extra judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.

The observation made in the aforesaid paragraph of the judgment is no different than what has been earlier decided in several cases. If the facts of the present case are examined carefully, it will be found that both P. Ws. 1 and 2 were not in friendly terms with the Appellant but in the night of occurrence when both of them heard some sound from outside, they came out of the house, found the Appellant standing in front of his house with a blood stained Tangia and when P.W.1 asked him as to what he was doing late in the night, the Appellant confessed to have killed his brother. The entire incident took place in such a manner that the question as to whether the Appellant could repose confidence in order to make an extra judicial confession or not did not arise. The extra judicial confession was made immediately after the occurrence. The Appellant was found standing in front of his house with a blood stained Tangia and on being questioned he instantly admitted to have killed his brother and also showed the dead body of the deceased to both the witnesses P. Ws.1 and 2. The circumstances under which such extra judicial confession was made, it cannot be entirely thrown out merely because the Appellant was not in a friendly terms with the said two witnesses. Apart from the extra judicial confession, the Court cannot also overlook the conduct of the Appellant immediately after the occurrence. The Appellant was found standing in front of his own house with a blood stained Tangia and there is no explanation from the side of the Appellant in this regard. He also showed the dead body of the deceased to both the witnesses P. Ws. 1 and 2. The injuries found on the deceased could be caused by Tangia and this is the opinion of the Doctor P.W.9. Therefore, the injuries found on the dead body corroborate the case of the prosecution that the deceased was assaulted by means of a Tangia which was found in the hands of the Appellant immediately after the occurrence. Coming to the chemical examination report, the learned Counsel for the Appellant referred to the evidence of I.O., P.W.10 and stated that the blood group of neither the Appellant nor the deceased having been done, no reliance could be placed by the trial court on such chemical examination report. It is true that the blood group of neither the Appellant nor the deceased had been done, but the chemical examination report shows that the blood stained earth seized from the spot contained human blood of Group AB. The Tangia seized from the hands of the Appellant also contained human blood of the same group. The wearing apparels of the Appellant and the deceased seized in course of investigation also contained the human blood of Group AB. The Appellant has not explained as to how human blood of AB Group was found on the Tangia as well as on his wearing apparels. Under these circumstances, we do not find any fault with the trial court in placing reliance on the said chemical examination report.

From the discussions made above, it is clear that the Appellant immediately after the occurrence on being questioned as to what he was doing so late in the night, instantly confessed to have killed his brother before P. Ws.1 and 2 and at that time he was not only holding a blood stained Tangia but also showed the two witnesses the dead body of the deceased. The injuries on the dead body of the deceased could be caused by Tangia held by the Appellant and the chemical examination report also shows human blood of Group AB not only in the sample earth seized from the spot but also from the wearing apparels of the Appellant and deceased as well as the Tangia seized from the Appellant. All these factors clearly establish the charge leaving no room to entertain a doubt regarding involvement of the Appellant in committing murder of his brother.

For the reasons stated above, we do not find any merit in the appeal and accordingly dismiss the same.